Paterson v Police - [2012] NZHC 2759

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000254 [2012] NZHC 2759

BETWEEN ADAM PATERSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 9 October 2012

Counsel: D J K Mitchell for the Appellant
E M Fitzherbert for the Respondent

Judgment: 9 October 2012

(ORAL) JUDGMENT OF DUFFY J [Re Appeal Against Sentence]

Solicitors:
Turner Hopkins P O Box 33237 Takapuna Auckland 0740 (DX BP66504) for the Appellant
Meredith Connell P O Box 2213 Shortland Street Auckland 1140 (DX CP24063) for the Respondent

PATERSON V NEW ZEALAND POLICE HC AK CRI-2012-404-000254 [9 October 2012]

[1] The appellant, Adam Paterson, pleaded guilty to a single charge of driving with an excess breath alcohol concentration. He was sentenced to 150 hours’ community work and 12 months’ supervision by Judge Dawson in the North Shore District Court. He was also disqualified from holding a driver ’s licence. Given that this was his second offence in the high breath alcohol level, the disqualification was for an indefinite period of time.

[2] Mr Paterson now appeals the community work and supervision sentences on the grounds that these are manifestly excessive.

Facts

[3] The facts of the offending are as follows. On 23 June 2012 at approximately

11.30 pm, Mr Paterson was stopped by Police while driving. He had a breath alcohol reading of 1,089 micrograms of alcohol per litre of breath, which was more than two and a half times over the legal limit. This is an offence pursuant to s 56(1) of the Land Transport Act 1998; it is punishable under s 56(3) by a maximum penalty of three months’ imprisonment or a fine not exceeding $4,500. Disqualification from driving is mandatory.

District Court sentence

[4] In the District Court, Judge Dawson considered there were two features aggravating the offending: the extent of Mr Paterson’s intoxication; and the fact that he had a conviction for the same offending in July 2010. The Judge noted Mr Paterson’s early guilty plea and took this into account.

[5] At [5], the Judge referred to the relevant principles of sentencing:

You need to be held accountable for your behaviour, Mr Paterson, because you have chosen to drive after drinking at an excessive level, which means that you have put other people at risk for their lives and safety. None of us have the right to do that, and because of that certain penalties must be imposed to bring home the seriousness of your offending to you and to others, and to act as a deterrent to stop people from driving in similar circumstances.

[6] It is notable that the Judge did not refer to s 13 of the Sentencing Act 2002. This provision provides that where the Court may impose a fine, in addition to, or instead of any other sentence, it must nevertheless regard a fine as the appropriate sentence, unless satisfied that, the purpose or purposes for which the sentence is being imposed cannot be achieved by imposing a fine. There is no express reference to s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 2759
Decision Date: 9 October 2012

CaseChat Overview and Summary

The case of Paterson v Police involves an appeal by Adam Paterson against his sentence for driving with an excess breath alcohol concentration. Paterson pleaded guilty to the charge and was sentenced by Judge Dawson in the North Shore District Court to 150 hours of community work, 12 months of supervision, and an indefinite disqualification from holding a driver’s licence. Paterson appeals on the grounds that the community work and supervision sentences are manifestly excessive. The primary legal issue before the Court was whether the sentence imposed by the District Court was manifestly excessive and whether it was materially flawed by the failure of the sentencing Judge to consider the imposition of a fine in terms of the requirements of section 13 of the Sentencing Act 2002.

The Court found that the sentence imposed was manifestly excessive and well out of kilter with sentences that are imposed for a second offence. The Court also found that the sentencing process was materially flawed by the Judge’s failure to consider the imposition of a fine in terms of the requirements of section 13 of the Sentencing Act 2002. The Court considered that the starting point must be section 13, which provides that a court must regard a fine as the appropriate sentence for the particular offence unless certain exceptions apply. The Court found that in this case, a fine was the appropriate sentence because Paterson had the means to pay a fine, he had made rehabilitative efforts, and his employment situation made it difficult for him to complete community work.

Accordingly, the Court allowed the appeal and re-sentenced Paterson to a fine of $2,250. The Court also modified the disqualification sentence to refer to the New Zealand Transport Agency, rather than the Director of Land Transport, as being the entity able to determine when Paterson will be able to drive again. The order to attend the assessment centre pursuant to section 65 of the Land Transport Act still stands.

Orders